Chris Evans (WA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Hansard source

I am still at a loss to understand why the government refuses to accept the ‘just terms compensation’ phrasing which it accepts in a whole range of other legislation. The Minister for Community Services says to me, ‘Oh, well, the phrase we are now using—reasonable compensation—has been the subject of legal decision making.’ I can counter by saying the ‘just terms compensation’ phrase has been subject to High Court decisions for years, so there is no suggestion that that phrase is somehow not well-established or has not been refined by the High Court. As the minister knows, there is a great deal of cynicism among many in the community about the government’s motives for including these land acquisition proposals in what is supposed to be a child protection measure. Labor accepted on face value the bona fides of the government in saying that we need these acquisitions to make the adjustments to housing and infrastructure that will allow us to address the underlying issues, which are effectively of poverty, that beset those communities. But, if these terms are interchangeable, why can’t you provide the reassurance of using the term that, from the evidence I have seen, is much more broadly understood in the community and among the legal community—that of ‘just terms compensation’?

There is cynicism about your motives. There is concern that proper compensation will not necessarily be paid. If the terms are interchangeable there should be no problem with the government accepting the well-established legal term ‘just terms compensation’. You defend your position, Minister, on the basis that ‘this is what the draftsman likes’. Well, bully for the draftsman! This is about what the parliament likes. This is about whether the parliament is reassured. The draftsman, as Senator Brown indicated, receives instructions from the government, and the government tick-tacks with them about how the legislation is drafted. If you want to table the advice from your draftsman that says there is a problem with ‘just terms compensation’ I would be happy to see it. But this parliament and senators in this parliament are very concerned that you do not seem to have any particular legal argument that says ‘just terms compensation’ has to be replaced by the term that, I concede, is in the Customs Act.

Again, I do not particularly care whether it is in the Customs Act. I do not particularly care what the draftsman does or does not like. What I know is that the legal advice Senator Brown has received and the submission from the Law Council raise concerns about the approach you are adopting. We are concerned that the terms are not interchangeable. The Law Council expressed the view in their submission that the drafting of the bill may shield the Commonwealth from a requirement to pay compensation. Their submission said:

The Law Council notes that the legislation appears to shield the Commonwealth from its obligation to compensate the relevant Land Trust or pay rent, in circumstances where a lease is issued under section 31.

So if the Law Council and Senator Brown’s legal opinion from Mr Walters both raise concerns, it seems to me that it is not unreasonable for the Senate to share those concerns. If you are really interested in building support more broadly for these propositions and if you are really interested in reassuring people about your motives it seems to me that you could support the amendment that replaces the term ‘reasonable compensation’ with the more broadly understood ‘just terms compensation’. While you refuse to do so people will be confirmed in their doubts and concerns. If, as you said to this place, those terms are interchangeable and there is no difference, why not provide the reassurance that changing the term to ‘just terms compensation’ would provide for the Senate, the Law Council of Australia and a lot of Indigenous people who made submissions on the bills? If not for me or the Indigenous people, do it for the Law Council of Australia. Provide some reassurance that somehow the provision that you are proposing does not shield the Commonwealth from meeting its obligations for just terms compensation.